Richard Ekins and Graham Gee | Introduction to Judicial Power and the Left

The constitutional kaleidoscope has been shaken and politics is in flux. One consequence of this is to bring into clearer focus changing patterns of political and legal thought, some of which have been a long time in the making. One such pattern is the erosion of the left’s traditional scepticism about expansive judicial power. There is of course no single ‘left’ tradition, whether within the UK or beyond. The left has embraced in various degrees and at various times elements of socialism, liberalism, and Marxism, with the history of the Labour Party defined in large part by relations between Fabianism and Syndicalism. Nevertheless, a thread that traditionally ran through constitutional thought on the left in the UK was a shared concern to curb judicial power. Those committed to social justice and to protecting the interests of the working class have long distrusted the courts and the common law — with some reason in light of the long shadow cast by infamous cases such as Taff Vale. Legislation was viewed as a much more reliable engine of social and economic change than litigation, with the judiciary suspected of often manipulating the common law to defend the power and privileges of the propertied classes. Distrust of the courts extended to the international sphere, as illustrated by the Attlee’s government’s resistance to the creation of the European Court of Human Rights (ECtHR). Opposition to judicially enforceable bills of rights — domestic and international — was once an article of faith on the left. This concern to limit judicial power formed one part of the left’s more general confidence in and attachment to the UK’s customary constitution and all that went with it (strong government, parliamentary democracy, and the primacy of the nation state).

It is striking just how far dominant views on the left have shifted. Today, the Labour Party defends ‘our’ Human Rights Act and takes pains to stress that democracy is ‘founded upon the rule of law and judicial independence’. Many progressive politicians now instinctively turn to supranational institutions such as the ECtHR and (for the time being) the Court of Justice of the European Union (CJEU) to compensate for what they regard as the deficiencies of a customary constitution based on parliamentary sovereignty. Amongst lawyers on the left, in particular, there is growing enthusiasm for the introduction of legally enforceable constraints on legislative power, constraints of the sort that are at odds with the UK’s constitutional tradition. In an effort to insulate discrete policy victories secured in the national arena from reversal, many on the left have now cast aside their distrust of powerful courts, loosened their embrace of the nation state, and turned instead to ‘the shelter of continental-style constitutional structures’, such as the European Union (EU) and the European Convention on Human Rights (ECHR). Many on the left are now close to giving up on parliamentary democracy and casting in their lot with the courts instead.

In making sense of the changing political landscape, and in addressing challenging questions about the future of the constitution after Brexit, the left’s tradition of scepticism towards the courts is an invaluable resource on which to reflect. This collection of essays offers a range of perspectives on this tradition. Its basic aim is to restate the sound reasons why those on the left ought to favour an appropriately circumscribed judicial role. Many (but not all) of the contributors to this collection self-identify as left-leaning, and most (but not all) lament the rise of judicial power. Their essays cover the historical, political, social, and academic lineages of the left’s traditional scepticism towards judicial power, and they furnish important insights into both the causes and consequences of its atrophy. That said, the collection does not purport to offer a comprehensive range of views. Several important questions are not addressed in these essays. For example, in the years ahead there will likely be challenging questions about the devolutionary politics of the judiciary, questions which require the left to interrogate the proper scope of the judicial role within a multi-layered constitution. Hence, these essays should be read as a starting point for the restatement of and reflection on the left’s traditional attachment to parliamentarianism on the one hand and a limited judicial role on the other. They are the beginning of a vital debate, not the last word on it.

In the collection’s opening essay, ‘Judicial Power, the Left and the LSE Tradition’, Carol Harlow sets the scene by reflecting on the working classes’ experiences of the criminal courts and civil courts, noting in particular how suspicion of the judiciary was rooted in the judges’ development of the common law in ways supportive of capital and hostile to trade unions. Harlow explains how this suspicion of the courts was an important factor driving research on law reform undertaken by a pioneering group of academics at the London School of Economics and Political Science (LSE) — a group that included several intellectual giants of the twentieth century, such as Harold Laski. Their academic work was marked by a practical focus. Much of it was directed towards devising cheaper and more accessible institutions for dispensing justice for the poor. In her essay, Harlow points to several examples of where academic work at the LSE subsequently shaped the policy choices of Labour governments. Much of this work sought to highlight the political nature of the judiciary. The most famous example was J.A.G. Griffith’s book on The Politics of the Judiciary, first published in 1977, which excoriated the judiciary for being drawn from an extremely narrow class of social elites that was inevitably characterised by a bias towards reactionary conservatism. For Griffith, as for so many on the left, the homogenous social and professional backgrounds of senior judges went a long way to explaining why the courts were unable to respond to the problem of social injustice.

In ‘The Left, Capitalism, and Judicial Power’, Danny Nicol reflects on some of the reasons why the Left in the UK now appears so amenable to ascendant judicial power. According to Nicol, the embrace of expansive judicial power is in line with liberalism displacing socialism as the dominant left ideology. With liberalism taking root on the left, there is no longer the traditional emphasis on upending capitalism and replacing it with a regime of economic planning, redistribution and nationalisation. Liberalism’s displacement of socialism has seen the left’s policy ambitions scaled back, and correspondingly the concern that judges might frustrate economic and social change has withered away, as well. Nicol explains that ‘when the left favours socialism, it seeks to restrain judicial power’, ever mindful that the courts ‘may present a threat to a radical, interventionist programme’, but that this concern dissipates whenever the left relaxes its embrace of socialism. This leads Nicol to argue that the dominant view on the left is no longer that judges are conservative-minded social elites who instinctively favour established interests, but rather that judges are liberal-minded guardians of the weak and downtrodden against right-wing policies. Nicol links the accommodation of an inflated role for the judiciary to the left’s increasing enthusiasm for supranational institutions. He notes with alarm that the EU and ECHR are each policed by powerful courts, whose case law and legal reasoning have emboldened the UK’s domestic judges. Nicol’s alarm is not limited to the way in which the EU and ECHR regimes have contributed to the judicialisation of national politics, but also the ways in which both regimes are inimical to transformative social and economic change.

In ‘Can Judges Be Trusted With the Common Law?’, Mike Macnair reflects on the extent to which the left should trust the judiciary. A reason commonly cited for trusting judges is their professional obligation to decide the questions that come before them solely on the basis of the relevant law, which contributes to legal certainty (i.e. the stability of the law). However, like others before him, Macnair views the common law with some scepticism, keenly aware that it can be used as an instrument of the ruling class. Macnair uses an example from land law — namely, the doctrinal distinction between a lease and a tenancy — to question the extent to which the left should rely on judges to honour that professional obligation to apply settled law. He cites a series of cases from the 1950s to explain how the Court of Appeal disturbed a settled area of law to craft in effect a partial loophole for private sector landlords from the statutory rent control regime. For Macnair, the judges’ mishandling of this seemingly discrete doctrinal question of land law had a very substantial social and political impact. It contributed to the erosion of public support for the rent control regime, with the ultimate abolition of rent control in turn contributing to the creation of housing benefit. As Macnair puts it, ‘[m]aking housing policy in the Court of Appeal in the interests of landlords as a class has…turned out to be very expensive in the long term’.

The legal regulation of the workplace is the setting for Alan Bogg’s reflections on the scope of judicial power. In his essay, ‘Judicial Power and the Left: Deference, Partnership and Defiance’, Bogg argues that it may be time to recalibrate traditional attitudes on the left towards judicial power. Arguments for or against judicial power in the abstract are meaningless, Bogg explains. Rather, cogent arguments against judicial power are always grounded in and informed by, amongst other things, the relevant political and constitutional context. For Bogg, the relevant context has changed. Legislation can be used to denude as well as defend workers’ rights, and collective bargaining no longer supplies sufficient protection for most private sector workers. According to Bogg, in that changed context, ‘the strategic calculations of workers and trade unions in using the law [is] more finely balanced’. Bogg draws attention to two aspects of the judicial function that have not featured prominently in the left’s traditional attitude towards courts and the common law, but which he argues should enjoy a greater prominence in the changed political and constitutional context. The first is the judicial duty to defend fundamental rights in the face of infringement by public or private power. The second is a duty to protect the weak and vulnerable from the abuse of power. In the appropriate case, and subject to established limits on the judicial role provided by the constitutional order as a whole, these twin responsibilities can require the judiciary to resist oppressive governmental action in the name of fundamental rights. Although alert to the risks associated with an expanded judicial role, the thrust of his essay is that in a changed world the left needs to recognise that ‘judicial defiance’ might become an increasingly important way of protecting the vulnerable against abuses of power.

While Bogg’s focus is squarely on the changing contours of domestic judicial power and their implications for the politics of the workplace, the object of K.D. Ewing and John Hendy’s essay is the ECtHR’s evolving attitude to labour rights. In ‘The Politics of Labour Law in the European Court of Human Rights’, Ewing and Hendy discuss how the protection of labour rights under the ECHR has evolved over almost fifty years. The ECHR was initially not fertile ground for progressives looking to expand labour protections. After all, the ECHR contains no express recognition of labour rights beyond Article 11’s guarantee of freedom of association, with the ECtHR reluctant throughout the 1970s to enlarge this to include the right to strike or the right for trade unions to be consulted. Ewing and Hendy explain that by the 1980s this reluctance to use the ECHR to protect labour rights had been replaced by an outright hostility to trade unions, as best reflected in the fact that the ECtHR decided that closed shop arrangements fell foul of Article 11. By the start of this century, however, the ECtHR was carving out a new approach, using its ‘living instrument’ interpretative approach to give Article 11 an expanded scope that encompasses the right to bargain collectively and the right to strike. However, Ewing and Hendy explain how the politics of the UK’s fraught relationship with the ECtHR has prevented the ECtHR’s new approach to Article 11 from having any impact in the UK. In a pincer movement, the domestic courts have refused to embrace the ECtHR’s new approach on the right to strike and the right to bargain collectively, whilst the ECtHR has declined to follow through on its new approach to Article 11 in a series of cases involving the UK. The upshot, as Ewing and Hendy see it, is that the ECHR and the Human Rights Act have ‘failed to modernise the law, which clings like a limpet to its foundations in the industrial revolution to serve the interests of business’.

It is the EU rather than the ECHR on which Chris Bickerton’s essay on ‘The Left’s Journey from Politics to Law’ chiefly centres. The left’s conversion to judicial power is a complex phenomenon with multiple causes, and Bickerton begins by pointing to some of the intellectual and political background to the left’s changed attitudes to law and courts. For Bickerton, perhaps the decisive factor explaining the changed attitude was the left’s declining confidence in the capacity of the political apparatus of the nation state to serve as an engine of enduring social and economic reform. This represented a crisis in the very idea of social democracy itself. Growing pessimism about politics was coupled with an emerging confidence in law’s ability to substitute for politics, although, as Bickerton notes, there remain real doubts amongst parts of the left about whether the law can ever be an effective vehicle for securing social and economic equality. Bickerton identifies the 1970s as an important turning point across Europe, as left political parties increasingly resorted to supranational rules and bodies to tackle price and wage inflation and industrial unrest. This turn away from the nation state towards supranational frameworks occurred at the same time as left political parties across much of Europe pursued less ambitious and less transformative policies in national arenas. This is the vital context for understanding why much of the left are now willing — as Bickerton puts it — ‘to strike a bargain with judicial power’. Bickerton closes by reflecting on how peculiar it is that the left in the UK now seeks to rely on supranational judicial bodies at the European level to insulate policy gains against domestic reversal given that in the UK’s constitutional tradition progressive change has been secured largely via legislation enacted by the Westminster Parliament and only occasionally via the courts.

Taking up similar themes in her essay, ‘Returning to Democracy: The British Left and the Constitutional Temptation of the European Union’, Helen Thompson explores some of the consequences of the Labour Party’s repudiation of the UK constitutional tradition. Thompson’s essay is a reminder of just how far the majority view within the Labour Party has shifted: from the Euroscepticism of the early 1970s (and the related emphasis on the ballot box and the national institutions of representative democracy) to the later embrace of the EU as effectively a new constitutional regime (in which the primacy of EU law is jointly policed by the CJEU and domestic courts). Thompson points to a speech by Jacques Delors to the Trade Union Congress in 1988 as pivotal in persuading the Labour Party that the primacy of EU law provides a means of entrenching progressive policies and thereby reducing the costs for the left of electoral defeat at the national ballot box. In her essay, Thompson identifies three primary and overlapping consequences of Labour’s rejection of the UK constitutional tradition and its acceptance of the EU’s new constitutional order. First, by accepting the constraints on national politics that are an integral feature of the EU legal regime, the Labour Party had forsaken some of its capacity to respond to and safeguard the economic interests of the working classes. Second, by so enthusiastically participating in the European project, the Party’s elites degraded their own political antennae, and above all would later fail to appreciate the impact of free movement on Labour’s heartlands. Finally, by signing up to the EU’s supranational regime that imposed limits on national institutions, the Party now finds itself ill-equipped to confront the post-Brexit political scene, lacking as it does “a coherent narrative about the value and place of democratic politics”.

The positive case for the UK’s permissive constitutional structure is outlined in ‘Constitutional Restraints and Radical Politics’, where Richard Tuck argues that this structure is more conducive to radical left-wing politics than the restrictive shape of the EU legal order. The significance of the referendum on the UK’s membership of the EU was that the public expressed its preference for a less restrictive constitutional framework, something that Tuck welcomes. Political elites on the left lost sight of the fact that progressive policies are best secured through legally unconstrained democratic processes. Noting the large gap between popular and elite opinion on the EU, Tuck argues that the public was much better placed than elites to think clearly about a supranational legal regime that places constraints on national politics because they have the most to lose wherever legally enforceable constraints are placed on ordinary politics. Tuck suggests that those on the left should welcome the rejection of the EU’s constitutional order, an order that — like Danny Nicol — he believes consistently advances a neo-liberal agenda. Turning to the post-Brexit political landscape, Tuck sounds a positive note, predicting that parliament is likely to resist any attempt to impose legally enforceable constraints on its legislative capacity of the sort experienced during the UK’s membership of the EU.

Tuck’s analysis of the opportunities presented by Brexit and his concern about constitutional orders that provide for judicial supremacy is informed by the constitutional history of the United States of America. The American experience is the focus of the next two essays. In ‘Protecting Privilege: The Historic Role of the U.S. Supreme Court and the Great Progressive Misunderstanding’, Gerald N. Rosenberg reflects on the lessons that US history teaches about the potential for courts to advance progressive social change. It is well known that litigation has featured prominently in American political life, especially from the mid-twentieth century, with the US Supreme Court issuing high profile rulings on a wide range of contentious policy questions. This has encouraged the left to assume that courts are key agents of social change, or at least reliable allies in the fight for social justice and the campaign to secure the rights of minority groups. But, as Rosenberg shows, progressive lawyers, activists, and politicians overlook the fact that, in US history, courts have more often been defenders of privilege and the status quo than champions of social and economic transformation. Reprising the argument of his seminal book, The Hollow Hope: Can Courts Bring About Social Change?, Rosenberg argues that the political left’s flirtation with the courts is misguided. He explains that the legal victories commonly cited as evidence that courts can secure lasting social change either did not produce the desired change or were reflective of political and social changes that had already occurred. The best example is the 1954 case of Brown, where the US Supreme Court held that racial segregation of public schools was unconstitutional. Piercing the mythology that has built up around the case, Rosenberg explains that there is no evidence that the decision heightened the political salience of civil rights, motivated political elites to act, or energised the civil rights movement. He points instead to some unintended consequences of the decision, including increased resistance to segregation in other contexts such as public transportation and public spaces. Using examples such as this, Rosenberg concludes that progressives have failed to understand the limits of litigation and ignored the need for robust social movements in order to secure enduring and transformative change.

If Rosenberg’s essay is mostly a reflection on the constitutional experience in the United States across the twentieth century, Chye-Ching Huang and Brian Highsmith focus on some of the challenges confronting progressive politics in the age of Trump. In ‘Progressive Politics and the Courts: Lessons from the United States’, Huang and Highsmith offer a cautionary tale to those on the left in the UK who might be inclined to advance a more expansive policymaking role for judges. There have been several high profile successes before the courts for progressives of course; for example, the 2015 decision of the US Supreme Court about same-sex marriage. However, Huang and Highsmith explain how decisions such as these obscure a much more complex picture about the merits of litigation as an instrument for progressive social and economic change. There have been notable victories on certain social issues before the current US Supreme Court, but Huang and Highsmith explain how this court is also more likely than any of its predecessors since WWII to resolve cases in ways favourable to business interests. Even the bald suggestion that progressives will have more success litigating social issues than economic issues conceals trends that should worry the left in the US. Huang and Highsmith explain how judicial decisions on economic issues can undercut progress on social issues; cases on contract or regulatory questions, for example, can be decided in a way that effectively constrains the ability of workers or consumers to access social rights. Huang and Highsmith also point to the risk that systematically using the courts to decide contentious policy debates will cause the ‘muscles’ of citizen participation in democratic politics to weaken. This is bad in its own right, they argue, for reliance on courts risks enervating citizens’ participation in politics and also raises the stakes for judicial appointments. But putting these concerns aside, Huang and Highsmith argue that it is strategically unwise for progressives to allow the relative authority of judicial power to increase at the expense of democratic politics. If the routes for citizens to shape democratic politics weaken, those that benefit will be interest groups on the right that have the greatest access to money and power.

The left’s long-standing concern about how best to address the socially harmful consequences of capitalism is complicated by a new phenomenon: the rise of international investment agreements. These agreements have acquired a heightened political salience as socio-economic fissures have become more visible following the international financial crisis. In ‘The Crisis of Legitimacy in International Investment Agreements and Investor-State Dispute Settlements’, Jane Kelsey surveys the contentious questions raised by the rapid growth of such agreements. International investor agreements have been criticised for constraining the ability of future national governments to regulate in policy areas covered by them and for the way in which foreign states and investors can enforce these agreements via extra-territorial arbitral tribunals. Kelsey explains how views on the political left tend to converge in opposition to investor rights and enforcement provisions in such agreements, with left critiques concentrating on how these agreements demonstrate a bias towards neo-liberalism. Opposition from the left to the international investor regime is likely to intensify across the globe, Kelsey argues, thereby adding a new frontier to the more familiar debates about the expanding reach of law, lawyers, and judicial institutions.

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Each of these essays makes rich and compelling reading, and together they help to bring into perspective the challenges confronting the left as the UK enters a new period in its constitutional history. A recurring theme throughout this collection is that the left has good reason to think about the constitution again, and more particularly the appropriate scope of the judical role within it. The left has a robust and reasonable tradition on which to draw, although, as some of the essayists note, there is also reason to worry about how well equipped the left is to engage with the new reality of the post-Brexit constitution. In the face of some of the political and legal uncertainties that will inevitably flow from leaving the EU, it will be tempting for the left to bury once and for all its commitment to the UK’s constitutional tradition of a limited judicial role. Many on the left may seek to cling to the bargain that they have struck over the last forty years or so with domestic courts and international courts such as the ECtHR. Or worse yet: they may learn the wrong lessons from the current political flux, and attempt to ratchet up the role for the courts within the post-Brexit constitution. As several of the essays in this collection make clear, that would be a mistake. Those on the left should not shelter behind an inflated role for the courts, but should instead embrace parliamentary politics within the nation state.

Richard Ekins is Head of Policy Exchange’s Judicial Power Project, an Associate Professor in the University of Oxford, and a Tutorial Fellow in Law at St John’s College, Oxford. Graham Gee is Professor of Public Law at the University of Sheffield and Editor of the website for Policy Exchange’s Judicial Power Project.